Etowah Min. Co. v. Wills Valley Min. & Mfg. Co.

• Decision Date: 08 June 1905
• Citation: 39 So. 336,143 Ala. 623
• Parties: ETOWAH MIN. CO. ET AL. v. WILLS VALLEY MIN. & MFG. CO.
• Court: Alabama Supreme Court

39 So. 336

143 Ala. 623

ETOWAH MIN. CO. ET AL. v. WILLS VALLEY MIN. & MFG. CO.

Supreme Court of Alabama

June 8, 1905

Appeal from City Court of Gadsden; John H. Disque, Judge.

"To be officially reported."

Action by the Wills Valley Mining & Manufacturing Company against the Etowah Mining Company and others. From a decree in favor of complainant, defendants appeal. Reversed.

Culli &amp Martin, for appellants.

SIMPSON J.

In this case it appears that the appellee (complainant) leased a certain iron mine to the appellant (respondent) Etowah Mining Company, "under which lease said Etowah Company had the right to take from said mine iron ore, and in which it was agreed that royalty should be paid for all ore thus taken"; that subsequently, and during the existence of said lease, said Etowah Company made a general assignment for the benefit of its creditors, by which said lease, with other property, was transferred to said W. M. Nixon as trustee, who was authorized to continue the operation of the mines and pay the royalty as provided by the lease. Said Nixon, as trustee operated said mines until March 14, 1894, and his trust terminated January 1, 1895. It is claimed that the royalty due has never been paid, either by Nixon, trustee, or the Etowah Company. The prayer of the bill is that a prior lien be declared in favor of complainant on certain property of the Etowah Company, which is a domestic corporation, but its officers have been out of the state for several years. The appeal is from the decree of the city court sitting in equity, overruling the demurrers to the bill and a motion to dismiss for want of equity.

Referring to the point, made by the learned judge in his opinion regarding the right of a party to proceed against the trust estate to recover for services rendered to or debts incurred by the trustee, the case of Coopwood v. Wallace, 12 Ala. 790, decided that where an attorney had rendered services to an estate at the instance of the administrator and one administrator had moved from the state and the other become insolvent, neither having made any charge against the estate, the attorney could proceed at once against the estate, without previously suing the administrators. This case came under review at a subsequent term of this court, and in an able opinion, going back to the leading opinion delivered by Lord Chancellor Eldon, and showing that, even where the expenses in question were provided for in the deed of trust, the great weight of authority was against the principle laid down in that case, the court distinctly overruled it, saying: "To hold that persons employed by an administrator or trustee may, if such trustee is insolvent, proceed at once in equity to recover their fees out of the trust fund or estate, although such fees may not have been allowed the trustee in the settlement, would be most mischievous in its tendency, as involving estates in much embarrassment and cost." Jones v. Dawson, 19 Ala. 672, 678. This case was quoted with approval by this court in the case of Kirkman, Abernathy & Hannah v. Benham, 28 Ala. 501, 506. And, following these, this court decided that one who has rendered services to an estate at the instance of the administrator cannot subject the estate to the payment of his claim after the administration has been closed. Lyon v. Hays, 30 Ala. 430. The court subsequently, while reaffirming the last three cited cases and holding that a wife's separate estate cannot be subjected in equity for services rendered to him under contract with her husband, goes on to state that "a majority of the court doubt the correctness of Jones v. Dawson, so far as it overrules or conflicts with any point actually decided in Coopwood v. Wallace. * * * They incline to the opinion that when an administrator, who is required by law to see that reasonable diligence is used for the collection of money due the estate, in the proper performance of that duty selects an attorney to collect it, and is not indebted to the estate and is insolvent, and has not charged the estate with the fees or compensation due the attorney, a case is presented which, perhaps, may be distinguished from that which was presented in Jones v. Dawson, Kirkman v. Benham, Lyon v. Hays, or here." Mulhall v. Williams, 32 Ala. 489. In a subsequent case, where the executrix had power to carry on and manage a farm, which, it was contended, gave her the incidental power to make debts against it, the court held that one rendering services to a trust estate at the instance of the trustee cannot, after suit against the trustee, followed by judgment and return of no property found, proceed in equity against the trust estate. The court specially refers to the cases of Coopwood v. Wallace, and Jones v. Dawson, and doubts the former adheres to the latter. Wade v. Pope, 44 Ala. 690, 694,...